Less than nine minutes and fewer than four questions isn’t enough to vet candidates for the Delaware judiciary, according to some legal observers. But that’s only the part that people see, government officials counter, saying there is a substantial and lengthy process that occurs before candidates reach the hearing.
Of the last nine judicial confirmations, only the hearings for Chief Justice Leo E. Strine Jr. and Superior Court Judge Vivian Rapposelli exceeded 10 minutes, according to Delaware Law Weekly’s research. While Strine’s hearing lasted roughly 40 minutes, the General Assembly completed Rapposelli’s hearing only a few seconds past the 10-minute mark.
In fact, without Strine’s somewhat lengthy hearing, the average time for a judicial confirmation would shrink to six minutes. Superior Court Judge Paul Wallace’s hearing lasted roughly nine minutes; Court of Chancery Chancellor Andre Bouchard had a seven-minute, 53-second hearing; Superior Court Judge Ferris Wharton’s hearing was six minutes and 38 seconds; Superior Court Judge Andrea Rocanelli’s hearing was four minutes and 32 seconds; Superior Court Judge Eric Davis had a roughly five-minute hearing; Superior Court Judge Charles Butler had a four-minute, 15-second hearing; and Family Court Judge Paula Ryan’s hearing lasted two minutes and 43 seconds.
“That is unusual,” said Paula Franzese, a government ethics professor at Seton Hall University School of Law. “Typically, the confirmation hearings in most states tend to be far longer and give legislators the opportunity to ask questions of judges whose answers should become a matter of public record.”
Senate Minority Whip Greg Lavelle, R-Sharpley, is a member of the General Assembly’s executive committee that conducts the confirmation hearings. He said the Judicial Nominating Commission and the governor’s office extensively vet each candidate before the hearing, eliminating the need for lengthy hearings or questions.
”Someone from the public may say, ‘Holy cow, that didn’t take long,’” Lavelle said. “Rest assured, there is an exhaustive and substantive process that occurs before the candidate gets to the floor that day.”
Former Delaware Supreme Court Justice Andrew G.T. Moore, now an administrative director at Gibbons P.C., said the truncated hearings are only a recent phenomenon. He said during his 1982 confirmation hearing he was asked about his finances, future political plans, judicial philosophy, views on the death penalty, and whether he viewed himself as a liberal or a conservative.
“They used to hold very serious hearings, at least that was my experience,” Moore said. “Now they seem to have become perfunctory and very serious issues that could be explored like potential conflicts with particular financial investments are not treated with the attention that they deserve.”
Judicial candidates also face very few questions during the hearings. For example, Wharton’s hearing consisted of two questions. Sen. Patricia Blevins, D-Elsmere, asked Wharton to detail how his experience as both a prosecutor and public defender provided him with familiarity with the Superior Court and its procedures.
Blevins’ question was followed by Lavelle asking Wharton if he could still play on the Republican volleyball team.
“There is an 800-pound gorilla in the room,” Lavelle said. “I have some serious concerns that this elevation to the bench may preclude you from playing volleyball for the Republicans when we do the annual Republican-Democratic volleyball game. So I’ve asked him to research this before coming here today. You have cleared this, right?”
After Wharton joked that he would talk to the Republicans on the Supreme Court, Blevins concluded the hearing by commenting she attended the same high school as the candidate.
Blevins, the executive committee chair, did not respond to phone calls and emails seeking comment.
Each candidate is asked how their experience could help them on the court and if any conflicts exist that would prevent them from being a judge. However, candidates only face one or two other questions. And, at times, the questions appear to have little relevance to the candidate’s future judicial career. Bouchard was asked what happens when a party opposes the vice chancellor assigned to adjudicate a case, to which he responded that he was unaware of that ever happening during his 29 years practicing before the Chancery Court. Wallace, a former member of the state House of Representatives, was asked if he enjoyed his time in the legislature. Strine was asked about decriminalizing minor fishing violations.
“I can’t recall any hunting or fishing violations coming before the Supreme Court,” Moore said.
“Maybe we should ask some more questions,” Lavelle responded. “But we have known many of the candidates for a variety of reasons. I’ve known Ferris Wharton for years and I see no point in whipping him.”
Wharton wasn’t the only candidate who faced an overtly friendly confirmation hearing. Butler was asked why he wanted to serve on the Superior Court and if he knew of any conflicts that could prevent him from serving on the court. After he answered both questions, Blevins called Butler “an asset to the state,” and Sen. David McBride, D-Hawk’s Nest, followed up by thanking Butler for his service, saying he was “tremendously pleased” to see his name on the nomination list.
During Rocanelli’s hearing, Sen. Harris B. McDowell III, D-Wilmington North, asked the judge if she could introduce her family members by name. Blevins then followed with, “I can’t say enough positive things about you and I’m thrilled to have you on the court.”
Roughly 13 minutes into Strine’s hearing, Blevins told the future chief justice that she “couldn’t be more pleased that someone of your caliber and morals could become chief justice.” A short time later, Lavelle told Strine, “I look forward to meeting your wife and kids after the hearing.”
Moore said confirmation hearings require more substance than senators praising the candidates.
“It’s fine to compliment the candidate and I don’t see anything wrong with that,” he said. “But if it is just fawning, this isn’t the forum for that. When you cast your vote perhaps you might want to say something, but I think just limiting the confirmations to a series of fawning compliments isn’t much of a hearing.”
Franzese praised Delaware for its congeniality, noting that confirmation hearings in other states are quickly reduced to partisan bickering. However, she cautioned that the overly complimentary hearings cause everyone to lose sight of their purpose.
“Collegiality is to be encouraged,” she said. “But the vetting process is meant to be a thorough scrutiny of candidates both in terms of experience and temperament on the bench.”
But Lavelle said he saw no reason why the legislature should not be complimentary toward qualified candidates.
“Am I supposed to be indifferent?” he asked. “I don’t see [compliments] as inappropriate nor would I see shock questions as inappropriate. It’s a hearing.”
“Maybe we get too comfortable with the candidates,” Lavelle continued. “But the public must understand this is not a wave of a magic wand. These candidates are vetted fairly and there is a substantive process just to narrow the list down to three. It would be hard to argue that they are not qualified.”
According to Lavelle, the Senate has access to information candidates provided the JNC and the governor. He added that many candidates make themselves available on a one-on-one basis to the senators for additional questions.
“We have the ability to sit down with the candidates and I’ve done that on a number of times,” he said. “We get financial disclosures, the questionnaire [submitted to the JNC] and the opportunity to have a conversation.”
At times, the senators almost seem to acknowledge the lack of questions during a hearing. For example, Wallace joked before the committee that he’s used to sitting on the other side and facing “much tougher questions.” The response elicited laughter among the executive committee members.
Lavelle said after Bouchard’s hearing, he spoke with a delegation visiting Kenya who watched the proceedings. He admitted that not a lot of questions were asked of Bouchard, but explained that many questions were asked of the candidate before the hearing.
Franzese said she was concerned that a lack of questions could prevent Delaware residents from learning about their judges before they take a seat on the bench.
”The legislative branch must take its imperative to vet candidates seriously,” she said. “It gives the public an opportunity to get forthright and honest answers from those who are appointed judges. The public must learn about the credentials, temperament and character of judges and know this is more than a rubber stamp.”
Lavelle disagreed, saying he has never been contacted by a constituent regarding a judicial candidate, noting also that his district is populated by many attorneys.
“I don’t think that is the purpose of the hearing,” he said. “If I have a candidate on the record and six years from now they make a ruling that contradicts the philosophy they expressed in the hearing, does it mean I have to impeach them or they are not allowed to change their mind?”
Although the hearings are constitutionally required, Moore said they should be eliminated and replaced with a straight up-or-down vote if candidates are not going to face serious questions.
“I think the solution is that the General Assembly needs to do more work and look at issues, such as investments, carefully or stop these perfunctory hearings,” he said. “If they are being viewed as perfunctory and a laughingstock it demeans the General Assembly, judiciary and the candidate.”
Franzese countered that the process could become more informative without much change from the legislators.
“All it takes is one member of the committee to be impressed by the need for substantive questions and begin asking those questions,” she said. “This can be changed into something different without losing its collegial spirit. It’s just going to take a little bit of time and one or two members of the committee so it will have greater substance and opportunity.”